Review: The Genome Defense: Inside the Epic Legal Battle to Determine Who Owns Your DNA by Jorge Contreras

      In a 1955 news show called See It Now Edward R. Murrow asked the inventor of the polio vaccine, Jonas Salk, who owned the patent to the vaccine. Salk replied, "Well, the people.  There is no patent.  Could you patent the sun?"

     This book is about a specific case, but it's also about much more, an indictment of the current patent system. Myriad Genetics, a company held the patents on two key genes, BRCA1 and BRCA2. Everyone has those genes, but women with certain mutations in their BRCA genes face much higher risks of breast or ovarian cancer. Through its patents, Myriad had essentially cornered the market on BRCA testing. The company charged more than $3,000 for a test, and insurers didn’t always cover it. Some women weren’t able to get tested because they couldn’t afford it. And the problem went beyond cost: One woman who joined the lawsuit as a plaintiff tested positive for a BRCA mutation but before undergoing surgical removal of her ovaries wanted a second opinion; because of Myriad’s patents, no other lab could confirm the diagnosis.

     The Association for Molecular Pathology along with several other medical associations, doctors and patients sued the U.S.Patent and Trademark Office and Myriad Genetics to challenge several patents related to human genetics. The suit also challenged several method patents covering diagnostic screening for the genes. Myriad argued that once a gene is isolated, and therefore distinguishable from other genes, it could be patented. By patenting the genes, Myriad had exclusive control over diagnostic testing and further scientific research for the BRCA genes. Petitioners spearheaded by the ACLU, argued that patenting those genes violated the Patent Act because they were products of nature. They also argued that the patents limit scientific progress. Section §101 limits patents to "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof."

     The district court granted summary judgment in favor of petitioners, holding that isolating a gene does not alter its naturally occurring fundamental qualities. (Judge Robert Sweet was ably assisted by his clerk who had an advanced degree in the bio-sciences. Sweey's opinion is worth reading as a clear exposition of both the science and the legal aspects of the case.  You can read it here.)

     The U.S. Court of Appeals for the Federal Circuit (specializing in patent cases, it was known as the "nerd's" court) reversed, holding that isolated genes are chemically distinct from their natural state in the human body. In March 2012, Petitioners sought certiorari; and  in light of Mayo Collective Services v. Prometheus Laboratories. the U.S. Supreme Court vacated the Federal Circuit judgment and remanded, i.e., sent it back for further consideration On remand, the Federal Circuit again upheld the patentability of the BRCA genes. Again appealed to the Supreme Court which ruled unanimously that genes were not patentable although cDNA was, as it was not a product of nature.

     The case was unusual in that the Solicitor General's Office took a position in opposition to that of the Patent Office which had declared that since they had permitted patenting of genes already, to reverse that would just mess up previously decided cases. That the SG's office did so, was the result of compromise worked out by many agencies brought together at the behest of Obama to determine what the position of the government should be. (It's worth remembering that Obama's mother had died of ovarian cancer at 56, fighting insurance companies until her death, and his grandmother died of breast cancer.) The compromise was orchestrated by Mark Freeman who serves a gold star for bringing such disparate parties together. It's also notable that Francis Collins, NIH director was adamantly opposed to gene patenting. He had been a co-worker with Mary Kelly and Mark Skolnick in isolating and linking the BRCA1 and BRCA2 gene mutations to breast and ovarian cancers.  Skolnick had recognized the monetary potential in their discovery and founded Myriad genetics, over the opposition of Kelly and Collins, which monopolized BRCA testing and made lost of money.

     There are some very appealing characters:  Lori Andrews, the "Gene Queen"  an attorney who was upset with the patenting of a test for Canavan Disease;  Michael Crighton, whose book Next and NYT op-eds laid some of the public groundwork for the court cases; Dan Ravicher, a successful patent attorney who became disillusioned with the way patents were destroying innovation and who formed his own public interest firm to challenge patents; Tania Simoncelli, the individual most responsible for getting the ACLU interested in gene-patenting; and Chris Hansen, the ACLU attorney who argued the case before the court.

     A very interesting read that raises all sorts of bioethical, medical, economic, and legal issues.

Other resources I read with this book in preparation for the review:

"Association for Molecular Pathology v. Myriad Genetics." Oyez, www.oyez.org/cases/2012/12-398. Accessed 12 Jan. 2022.,

"Association for Molecular Pathology V. Myriad Genetics." LawAspect.com, 11 Oct. 2020, lawaspect.com/case-association-for-molecular-pathology-v-myriad-genetics/.

Burk, Dan. "The Curious Incident of the Supreme Court in Myriad Genetics." Notre Dame Law Review, vol. 90, no. 2, 1 Dec. 2014, pp. 505-542.

Contreras, Jorge L. The Genome Defense: Inside the Epic Legal Battle to Determine Who Owns Your DNA. Algonquin Books, 2021.

"Diamond v. Chakrabarty." Oyez, www.oyez.org/cases/1979/79-136. Accessed 12 Jan. 2022.,

"Intellectual Property in Genomics." Genome.gov, 13 Mar. 2019, www.genome.gov/about-genomics/policy-issues/Intellectual-Property.

Isaacson, Walter. The Code Breaker: Jennifer Doudna, Gene Editing, and the Future of the Human Race. Simon & Schuster, 2021.

Joanna R. "The Cancer Gene: In the Family?" YouTube, www.youtube.com/watch?v=82Vm6Z7RzoM.

"Mayo Collaborative Services v. Prometheus Laboratories, Inc." Oyez, www.oyez.org/cases/2011/10-1150. Accessed 12 Jan. 2022.,

"The Myriad Gene Patent Case: Trickier Than You Might Think." Science | AAAS, www.science.org/content/blog-post/myriad-gene-patent-case-trickier-than-you-might-think.

Opinion by Jorge L. Contreras. "Opinion: Don't Let Gene Patents Make a Comeback." CNN, 21 Oct. 2021, www.cnn.com/2021/10/21/opinions/stop-gene-patents-contreras/index.html.

"Post-Myriad Legal and Policy Considerations for Patenting Genetic Inventions." IPWatchdog.com | Patents & Patent Law, 8 Aug. 2021, www.ipwatchdog.com/2019/03/10/post-myriad-legal-policy-considerations-patenting-genetic-inventions/id=107131/.

Pääbo, Svante. Neanderthal Man: In Search of Lost Genomes. Basic Books, 2014.

Shreeve, James. The Genome War: How Craig Venter Tried to Capture the Code of Life and Save the World. Ballantine Books, 2007.

Sweet, Robert W. "Case 1:09-cv-04515-RWS." 2010, patentlyo.com/media/docs/2010/03/myriad-opinion.pdf. Accessed 2 Mar. 2022.

Review: The Witch of Lime Street by David Jaher

 

For millennia, religion, spiritualists, and ghost hunters have maintained that contact with the dead was possible. Lots of money was easily made by all of these groups by fleecing people into believing there might be something beyond the grave (religious groups are still raking it in.) Magicians, knowing how easy it is to fool people, have none of it. This book details the interaction between Sir Arthur Conan Doyle, a believer, Houdini, definitely not, and Margery Crandon, a very clever purported spiritualist.

 

The early 20th century was beset with occult fever. Possibly related to the huge number of dead from the "War to End All Wars," numerous psychics and mediums (mediae?) popped up playing on the need of comfort for the bereaved, some "gauzy borderland" where the dead and living might mingle.  In an effort to bring some science to the craze, the Scientific American offered a prize of $2500 (the equivalent of about $37,000 today) to anyone able to show and prove physical manifestations emanating from the dead.

 

Crandon looked to be the easy winner of the prize until Houdini entered the fray and insisted all her conjuring, voices, and sounds were fake. The group fo scientists the magazine had assembled to test her claims had been bamboozled, some by her (she had a sexual presence that was powerful), others by their failure to understand how they were being manipulated.  When she began producing "ectoplasm" from, her "nether" regions, I have to say, it got really goofy.

 

I listened to this book as an audiobook.  It's well-read and quite fascinating as a mirror on the 20's, 30's, with a peak into the lives of Sir Arthur Conan Doyle and Houdini. Some of the minute detail of the seances got a bit mind-blowing but not so much that I wouldn't recommend the book.

Review: Surprise, Kill, Vanish: The Secret History of CIA Paramilitary Armies, Operators, and Assassins by Annie Jacobsen

This provocative book could have been entitled "Hubris, or, How Government Does Things Forbidden to Everyone Else."  I've been reading a lot of books lately about cyber security and warfare as well as a couple related to diplomacy and the discussions that go on behind the scenes in making difficult decisions. Jacobsen adds another thought-provoking element to the discussion. Just what should be the role of secrecy and unaccountability in actions taken by government in a democracy where citizens are expected to play a role in decisions of consequence. Do a few people have the right to make decisions of extraordinary consequence that involve killing without better oversight. All of our previous presidents have had to make decisions that could result in the death(s) of people whose innocence or guilt is determined by just a few others.

    In the fifties and early sixties, the United States had an inadvertent shadow government consisting of the Dulles Brothers, Allen and John Foster, Director of the CIA and Secretary of State respectively. (See The Brothers by Stephen Kinzer for more detail.) Couple their antagonism and paranoia of perceived Soviet aggression, particularly in Central America with power, and you have a recipe for covert U.S. intervention to prevent the rise of nationalist states or any hint of revolutionary behavior that might disrupt the status quo, i.e.  dictatorial governments favorable to U.S. interests. Democratically elected governments were anathema given their messy nature and tendency to support their electors rather than the U.S.

In one of her presentations on YouTube, Jacobsen tells the story of a visit she received from one of her sources who had been in Afghanistan and elsewhere.  He showed her sons (with her permission) his scoped rifle which, when they looked through it, revealed the veins on leaves across the valley.  In another case, that he did not open for her boys, he showed her the contents: a very large knife with a serrated edge, the purpose, he explained, was for when quiet was required. Her reverence was palpable. 

    One of the covert operatives she reports on was Larry Thorne, recipient of the Finnish equivalent to the U.S. Medal of Honor, but also the only member of the Waffen SS to serve in the U.S. military.  By all accounts he was an extraordinary individual who, I would guess, would have languished had he lived to see retirement (he was killed in a copter crash in Vietnam.) Thorne took a covert team into Iran to recover material from a U.S. plane that had crashed in Iranian mountains.  They were never detected. 

The CIA operated as a virtual shadow government with little, if any, oversight, often with future unintended consequences. The failure of the French at Dien Bien Phu in 1954, was not just because the U.S. failed to come to the aid of the French, but also thanks to the superior guerrilla tactics of Ho Chi Minh and General Giap who had been taught the techniques by the OSS, precursor to the CIA, to use against the Japanese. 

 

The title comes from the motto of the OSS, the covert operations group during WW II.  It was "Surprise, Kill, Vanish."  In a world filled with euphemisms (Reagan's name for the "kill list committee" (those targeted for assassination) was "preemptive neutralization" , Eisenhower's was  "the Health Alteration Committee."  The committee's role was to provide authorization for the assassinations.)  The euphemisms were to hide the information.  Jacobsen maintains in a democracy information must not be buried. The rules of engagement differ from the military to the CIA.  The Seals who killed Bin Laden were enrolled for the day(s) in the CIA because the CIA can operate in a country with whom we are not at war.  We have teams in 134 countries performing covert actions.  Completely at the sole direction of the President.   

 

The Bay of Pigs calamity was to have long-term implications for the CIA.  Kennedy was so upset with their failure that he reorganized it and placed it in the military structure.  This meant that the military would now be in charge of para-military operations.  The man he placed in charge of the covert operations was Victor Krulak*, leader of the Marines he had rescued during WW II. (Jacobsen makes the mistake here of assigning the rank of Lt. Colonel to Kennedy when he was in reality a Navy Lieutenant (equal to the Marine rank of Captain).  at the time. It was Krulak who was the Lt. Colonel. This change meant that during Vietnam, covert operatives had access to unlimited supplies of materiel that could be dropped to them using the endless resources of the military. 

 

As the author gets closer to the present, the descriptions and details get longer, not a bad thing and certainly fascinating, but the book loses sight of the forest for the trees.  The recounting of the debacle at Oscar 8, for example. The CIA had developed intelligence that General Giap would be at a certain location at a certain time on the Ho Che Ming Trail. A plan was created to kill or capture him, which, if successful, was certain to shorten the war.  SOG (Special Operations Group forces) men would be inserted following carpet bombing of the area by B-52s. Description of the scene was provided by the observer watching from above in a Cessna who desperately tried to warn off the approaching troop helicopters after they realized the bombing hadn't diminished NVA anti-aircraft at all. Unable to warn them off, the observer and his pilot, watched as each chopper was shot down as were 100% of the support aircraft.  Only about 25 survived in a huge bomb crater, so it was now a rescue operation. 

 

I'm not smart or well-read enough to know the veracity of many of the stories Jacobsen recounts. Kai Bird, an author, for whom I have great respect, and who wrote about the CIA, doesn't think much of her book, complaining she relies to much on Billy Waugh's account of things and that her focus is often conspiratorial and silly witness her book on Area 15 and the one on paranormal phenomena.  (https://tinyurl.com/2kdau6ec) I have read enough to know that many of the CIA's activities were rogue operations and of questionable long-term value with innumerable unintended consequences, often getting their presidents in trouble.

 

     The question I think Jacobsen should have asked is whether this kind of activity is better than war. Good question.

 

    *Krulak was an interesting character. It was he who, after seeing the unique designs of Japanese landing craft, that had a ramp in front which could be lowered, as a Lt. had proposed something similar to the Navy brass. His proposal was shelved and marked as the ravings of some lunatic. Unwilling to give up on the idea, he worked with boat designer Higgins to create the iconic landing craft used throughout the war, and without which, most beach landings could not have been accomplished. See Robert Coram's biography of Krulak. [https://tinyurl.com/y2h8zr8e]

 

Review: Leviathan: The History of Whaling in America by Eric Jay Dolin

Part Mark Kurlansky and John McPhee, -- authors I love -- Eric Dolan has written an absolutely fascinating book about whales and the history of the whaling industry. Much as those authors bring quotidian things and events to life.  It's also part literary criticism and biography.

 

The first whaling was done by settlers who copied the Indians dismantling of stranded pilot whales along the coast. This was succeeded by shore-based whaling as the value of whale oil became apparent leading to taxation and division of the spoils according to detailed rules.  What happened, for example, when a whale washed up on the beach attached to a harpoon?  Who "owned" the whale? This led to marking harpoons and lances, much as lobster fishermen do to buoys today, to help identify who might own a share.

 

Gradually, as the Indians, who had performed much of the labor connected to whaling, died off from diseases brought back by those same ships, and as the value of the product rose immensely, blacks were hired to work. The case of Prince Boston was to have profound implications nationally. He was an excellent boat steerer, and having returned from a voyage was due the princely sum of 28 pounds, a substantial amount.  His owner, Swain, claimed the money belonged to him and when Roach, the ship's owner, who despised slavery, insisted on paying Boston directly, Swain sued. He lost in all venues. In the Mass. Supreme Court, Boston was not only awarded the money but also given his freedom.

 

Whaling leveled racial animosity. Escaped slaves would often seek out berths on whaling vessels as a way to earn money (they got equal wages with their white counterparts) as well as escape the depredations of the slave catchers. Most Nantucket whaling captains wanted nothing to do with racial animosity and valued their black sailors.  There were exceptions. One Second Mate who became captain after the deaths of the Captain and his First Mate, decided he could make a lot of money by turning his ship into a slaver and sailed off to Africa where he obtained a load of slaves, a profitable voyage, indeed.  Whale ships were designed to have lots of room in the hold making them well-suited for such evil transactions.

 

The story behind Moby Dick is interesting.  Melville had signed on has a hand on a whale ship for a 1/175th share (the whole section on how they were paid and the pittance ordinary seamen earned is revealing.) During a GAM -- when two whale ships met in the ocean they would hang our for several days mingling crews and exchanging gossip -- Melville met a young man by the name of Chase who recounted his time on the Essex, a ship that was rammed by a large sperm whale and battered until it sank. The few crew members who survived did so by consuming their companions. (See my review of Nathaniel Philbrick's In the Heart of the Sea: The Tragedy of the Whaleship Essex.) Melville was so taken by the story he used it for, well, you know...  

 

The heyday of whaling was the 1850's before the discovery of coal gas and kerosene as alternative lighting options. The predations of the confederate raiders Shenandoah and Alabama which preyed almost exclusively on the whaling fleet -- they couldn't shoot back so it was easy pickings, destroyed many ships, but the great ice-in of 1871 and 1876, when with typical white man hubris they had ignored the warning of the Eskimos in the Arctic, not only destroyed many ships, but badly hurt the insurance industry which had to take the brunt of the losses. (The story of of 100 whale boat trek to open water is quite a story in itself.) The ever-increasing availability of oil and its refinements spelled doom for the whaling industry, which diminished to nothing by the end of the 19th century.

 

Wonderful read.

 

Review: In the Heart of the Sea: The Tragedy of the Whaleship Essex

 Everyone knows the story of Moby Dick, the great white whale chased by Captain Ahab, that succeeds in sinking Ahab’s ship. Apparently, Herman Melville based the story on a real event, although the sperm whale was not white, merely an enraged, but also seemingly cunning, bull sperm whale. It’s this story of the whale ship Essex, and of the grim events that faced the sailors who left Nantucket in 1820, that Philbrick tells of in rather horrifying detail .

The Essex’s Captain Pollard was on his first command and was only recently married when they sailed for the Pacific whaling grounds. The voyage did not get off to a good start when only a short while after their departure, he insisted on maintaining studding sails during a regular blow that resulted in a knockdown, the ship being blown over on its side by a strong gust of wind. That it ever righted itself was extraordinary and a testament to the seaworthiness of these vessels that were crewed usually by some twenty to thirty men. His crew was still quite green and the experience must have been unnerving, to say the least. Nantucket was populated by Quakers who never quite adjusted to the presence of offislanders, i.e., anyone not born on the island. They were also, despite their professed pacifistic nature, a rather savage lot. There was a “blood lust and pride that bound every mother, father and child in a clannish commitment to the hunt. . . . There was rumored to be a secret society of young women on the island whose members pledged to marry only men who had already killed a whale.” Be that as it may, they were not having much luck initially, but after a difficult passage around the Horn, they managed to find a pod of whales and begin filling the hold. Philbrick provides rich detail of the whaling industry and the lives of the men who crewed the ships.

The book is worth reading for just that minutiae alone. In any case, two of the eventual survivors recorded the events in detail, so Philbrick has some evidence to help ground his narrative. It appears this bull sperm whale, estimated to be 85 feet long, quite large, only two feet shorter than the ship itself, drove head-on into the ship. Initially the crew suspected it must have been an accident, but this guy lined himself up and headed back in for a second shot, this time staving in the planks by the forecastle, causing water to rush in below the waterline and the ship to begin sinking. They managed to save three whaleboats and a substantial amount of provisions and water. Regretfully, the captain was not a forceful man, for his plan to sail westward to the Marquesas Islands probably would have saved many lives. That coupled with his inadequate navigational skills, particularly as they related to finding one’s longitude, and the crew’s fear of suspected cannibalism on those islands – an ironic fear, given what was to follow – forced his decision to follow the first mate Chase’s advice to sail for the west coast of South America, several thousand miles farther than the Marquesas. Cannibalism was an accepted reality among shipwrecked sailors, and, in fact, most of those who survived long voyages at sea following a shipwreck often had a time convincing their rescuers that they had not indulged in the practice. 

Philbrick’s description of the eventual eating of one’s fellow crewmen – they even cast lots to see who would die and be eaten – would make Stephen King proud and bring new meaning to the word “gross.” Had the crew adopted the practice of another shipwrecked crew, they might have survived without having had to indulge in the practice. This other crew cut up a sailor who died from hunger and used his parts for bait, catching many sharks that provided enough sustenance to get them through the ordeal. The Essex survivors never caught any fish. The story of what happened to the survivors after their rescue is as interesting as the rest of the book.